Mission Metroplex, Inc. v. Linlar Enterprises
Claim Number: FA0709001076136
Complainant is Mission Metroplex, Inc. (“Complainant”), represented by Tillie
Burgin, 210 W.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <missionarlington.com>, registered with The Registry At Info Avenue d/b/a IA Registry.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 12, 2007; The Complaint was withdrawn on September 24, 2007 pursuant to Rule 12(e), then reinitiated on October 23, 2007 pursuant to Rule 12(a)(ii); the National Arbitration Forum received a hard copy of the Complaint on October 23, 2007.
On
On October 23, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 12, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@missionarlington.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <missionarlington.com> domain name is identical to Complainant’s MISSION ARLINGTON mark.
2. Respondent does not have any rights or legitimate interests in the <missionarlington.com> domain name.
3. Respondent registered and used the <missionarlington.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Mission Metroplex, Inc.,
has continuously used the MISSION ARLINGTON mark in connection with social and
religious services since 1986. The
MISSION ARLINGTON mark is associated with 250 religious congregations, various
social, community and international missionary services. Complainant is based out of
Respondent’s <missionarlington.com>
domain name was registered on
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Under Policy ¶ 4(a)(i), Complainant
need not have registered its mark with governmental authorities in order to
establish rights. Common law rights may
be established through continuous use and a showing of secondary meaning. See
Complainant has continuously operated its non-profit
religious organization under the MISSION ARLINGTON mark since 1986. The MISSION ARLINGTON mark is associated with
250 religious congregations, various social, community and international
missionary services. Complainant
registered the MISSION ARLINGTON name with
Respondent’s <missionarlington.com>
domain name contains Complainant’s MISSION ARLINGTON mark in its entirety,
omitting the space between
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. See VeriSign Inc. v. VeneSign
No Response has been submitted to the Complaint. Accordingly, the Panel presumes that
Respondent has no rights or legitimate interests, but will still examine the
record in consideration of the factors listed under Policy ¶ 4(c). See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s
failure to respond means that Respondent has not presented any circumstances
that would promote its rights or legitimate interests in the subject domain
name under Policy ¶ 4(a)(ii).”); see also
Canadian Imperial Bank of Commerce v. D3M Virtual Reality Inc., AF-0336
(eResolution Sept. 23, 2000) (finding no rights or legitimate interests where
no such right or interest was immediately apparent to the panel and the
respondent did not come forward to suggest any right or interest it may have
possessed).
Neither Respondent’s WHOIS information nor anything else in
the record gives any indication that Respondent is or ever was commonly known
by the disputed domain name. Moreover,
Complainant has not granted permission to Respondent to use its mark in any
way. As a result, the Panel finds
pursuant to Policy ¶ 4(c)(ii) that Respondent is not
commonly known by the <missionarlington.com>
domain name. See
RMO, Inc. v. Burbridge, FA
96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii)
"to require a showing that one has been commonly known by the domain name
prior to registration of the domain name to prevail"); see also Compagnie de Saint Gobain v.
Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or
legitimate interest where the respondent was not commonly known by the mark and
never applied for a license or permission from the complainant to use the
trademarked name).
Respondent’s <missionarlington.com>
domain name contains Complainant’s mark in its entirety. Further, it resolves to a web-page that
features various advertisements, and frequently links to third-parties that
offer religious services and information that competes or conflicts with the
information and services offered under Complainant’s mark. It is presumed that Respondent commercially
benefits from each misdirected Internet user through the use of “click-through”
fees. The Panel finds this to be neither
a bona fide offering of goods or
services pursuant to Policy ¶ 4(c)(i) nor a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See WeddingChannel.com Inc. v.
Vasiliev, FA 156716 (Nat. Arb. Forum June 12, 2003) (finding
that the respondent’s use of the disputed domain name
to redirect Internet users to websites unrelated to the complainant’s mark,
websites where the respondent presumably receives a referral fee for each
misdirected Internet user, was not a bona fide offering of goods or
services as contemplated by the Policy); see
also Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb.
10, 2003) (holding that the respondent’s use of the disputed domain name to
host a series of hyperlinks and a banner advertisement was neither a bona
fide offering of goods or services nor a legitimate noncommercial or fair
use of the domain name).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent’s <missionarlington.com>
domain name is identical to Complainant’s mark and frequently offers links to
third-parties and information that competes and conflicts with the religious
information and services offered under Complainant’s mark. The Panel finds this to establish
Respondent’s bad faith registration and use of the disputed domain name to
disrupt the organization and services offered under Complainant’s mark pursuant
to Policy ¶ 4(b)(iii).
See EthnicGrocer.com,
Inc. v. Latingrocer.com, FA 94384 (Nat. Arb. Forum July 7, 2000)
(finding bad faith where the respondent’s sites pass users through to the
respondent’s competing business); see
also EBAY, Inc. v. MEOdesigns,
D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and
used the domain name <eebay.com> in bad faith where the respondent has
used the domain name to promote competing auction sites in violation of Policy
¶ 4(b)(iii)).
Moreover, Respondent’s <missionarlington.com>
domain name displays advertisements and is presumed to be financially
benefiting from each misdirected Internet user who clicks on a link, through
the use of “click-through” fees. The
Panel finds this commercial benefit to Respondent from a disputed domain name
that is identical to Complainant’s mark to be additional evidence of
Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See
Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding
that if the respondent profits from its diversionary use of the complainant's
mark when the domain name resolves to commercial websites and the respondent
fails to contest the complaint, it may be concluded that the respondent is
using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv));
see also Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <missionarlington.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: November 30, 2007
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